["identities among the vast numbers of people who reside within the Indian nation. Demands for new States have, somewhat unusually, \u2018become an everyday feature of the political marketplaces\u2019 in India.14 So far, there have been five major revisions to State boundaries in India since 1947, even as other smaller changes have occurred with regularity. These have included: (i) the merging of Princely States and former British provisions at the time of independence between 1947 and 1950; (ii) the creation of \u2018linguistic\u2019 States in the 1950s and 1960s; (iii) the formation of autonomous units for minority communities in the State of Assam in north-east India between the 1960s and 1980s; (iv) the reorganisation and creation of the three new States of Chattisgarh, Jharkhand and Uttarakhand within the predominantly Hindi-speaking region of north and central India in 2000; and (v) the carving out of the new State of Telengana out of the existing State of Andhra Pradesh in 2014. B. The Distribution of Legislative Power Part XI of the Constitution of India, comprising Articles 245\u2013300A, is entitled \u2018Relations between the Union and States\u2019. It consists of two chapters that deal respectively with \u2018Legislative relations\u2019 and \u2018Administrative relations\u2019. Despite the implicit suggestions in the title, provisions affecting federal\u2013State relations, and the distribution of powers between them, are scattered throughout the text of the Constitution. Articles 245 and 246, read with the Seventh Schedule to the Constitution, lay down the scope of the legislative powers of the Union and the States within the territories over which they have exclusive power. The subjects over which the Union legislature has exclusive power are set out in List I (or the \u2018Union List\u2019) of the Seventh Schedule. The Union List contains 97 entries including important subjects such as \u2018Defence of India\u2019 (Entry 1), \u2018Foreign affairs\u2019 (Entry 10), \u2018Banking\u2019 (Entry 45), \u2018Insurance\u2019 (Entry 47), \u2018Taxes on income other than agricultural income\u2019 (Entry 82) and \u2018Offences against laws with respect to any of the matters in this list\u2019 (Entry 93). List II (or \u2018The State List\u2019) comprises 66 entries over which the States have exclusive power to make laws, and consists of subjects such as \u2018Police\u2019 (Entry 2), \u2018Public health and sanitation\u2019 (Entry 6), \u2018Agriculture\u2019 (Entry 14) and","\u2018Betting and Gambling\u2019 (Entry 34). List III (or \u2018The Concurrent List\u2019) sets out 47 subjects on which both the Union and the State legislatures can pass laws. The subjects include \u2018Criminal law\u2019 (Entry 1), \u2018Marriage and divorce\u2019 (Entry 5) and \u2018Economic and social planning\u2019 (Entry 20). Judging by the quantity and quality of the entries, it is clear that the Union legislature is the dominant actor in this context. This impression is confirmed by a reading of Article 248, which declares that residuary power of legislation vests in the Union Parliament, a departure from the norm in several federal States where residuary powers vest in the State units. Several other provisions in the first chapter outline how the basic distribution of power can be altered to the advantage of the Union through action by the Council of States and the Union Executive. During the lead-up to the Constituent Assembly, there was considerable debate among Indian nationalists over the issue of residuary powers, which also took on a communal dimension. Hindu groups generally asked for residuary power to vest in the federal government whereas Muslim groups, fearing that this would lead to less protection for minorities, wanted residuary power to vest in the provinces. The Indian National Congress had taken contrasting stances on this issue but by the time this came up for decision in the Constituent Assembly, the state of Pakistan had been created and the Assembly decided to vest such powers in the Union. Two broad reasons were asserted for the dominance of the Union Parliament on the issue of distribution of legislative powers.15 The first was that of constitutional flexibility. BR Ambedkar expressly drew a contrast with rigid federal Constitutions such as that of Australia, which, according to him, suffered from providing only three matters where the Australian Commonwealth had exclusive legislative authority. Ambedkar believed that giving the Indian Parliament greater powers in this respect would \u2018lead to the greatest possible elasticity in its federalism\u2019.16 The second reason follows from a rationale noted earlier: the desire of the framers to enable the Union to meet the pressing economic needs of the people and to withstand the pressures of economic uncertainty, national security concerns and related factors. Internal governmental documents from the time reveal the preoccupation of the founding generation with such matters and their conviction that only a strong central authority could secure these goals. For the purposes of local government institutions it is significant, as noted earlier, that legislative power over them vests with the State","governments, under Entry 5 of List II. This was sought to be altered through the introduction of local government institutions via the 73rd and 74th constitutional amendments in 1992, but as we shall see in a subsequent section, the presence of Entry 5 in List II appears to have had a restraining effect, with negative consequences for the administrative and financial powers of local government institutions. Over time, the Indian judiciary has played a major role in resolving disputes over interpreting Articles 245 and 246. Judges have evolved a number of doctrines, often borrowing from the prior rulings of Canadian and Australian courts, to find creative ways of doing so.17 The general view of scholars is that the judiciary has, in doing so, \u2018clarified and harmonized many aspects of centre\u2013State relations\u2019.18 Later we will examine how the Supreme Court has performed crucial roles in safeguarding the federal character of the Indian Constitution in specific areas. C. Executive and Emergency Powers in Relation to Federalism The pronounced tilt towards the Union is strongly evident in these provisions, several of which were either lifted directly from or inspired by their analogues in the Act of 1935. Article 256, which has rarely been invoked in practice, stipulates that every State should exercise its executive power to ensure compliance with parliamentary laws. It further empowers the Union executive to issue directions to ensure such compliance. Many of the provisions in Chapter II of Part XI (specifically Articles 256\u2013261) seek to empower the Union executive in respect of diverse situations. One of the most controversial provisions in the context of federal\u2013State relations is Article 356. This provision empowers the President of India (who acts on the advice of the Union Cabinet) to declare that a situation has arisen in which the government of a State cannot be carried out in accordance with the provisions of the Constitution. To reach this decision, the President must have received a report issued by the Governor of a State (who is an unelected, political appointee very often beholden to the ruling party at the Union). This then enables the President to assume to himself the powers of the State government, giving rise to the popular understanding that the provision authorises \u2018President\u2019s Rule\u2019.","As already noted, this provision bears resemblance to Section 93 of the Act of 1935 and was criticised in the Constituent Assembly for continuing the colonial abuse of executive authority at the expense of legislative power. Defenders of this provision in the Assembly included Alladi Krishnaswamy Aiyyar and BR Ambedkar. Ayyar once again alluded to the prevailing mindset among the elite echelons of the Congress Party: \u2018the grave and difficult times facing the nation\u2019.19 There were no doubt significant troubles confronting the nation at the time, including \u2018the lawlessness and terrorism in Bengal, the continuing activities of the Communists in Telangana, as well as the uncertain agricultural and financial situation\u2019.20 Ambedkar, however, saw the force of the argument and the very real potential for abuse. He argued that the provision was a measure of last resort in times of severe governmental crisis. However, he did not take the criticism on board beyond agreeing with the hope expressed by another member that the Union would ensure that the legislature was dissolved and fresh elections called for, thereby giving the province a second chance to manage its own affairs before the Union intervened. This hope was, however, not realised in actual practice, as frequent invocation of the provision in later years demonstrated. On an average, President\u2019s Rule under Article 356 was declared 1.5 times per year during the years between 1951 and 1966, 3.1 times between 1967 and 1988, and 2.3 times between 1989 and 1997.21 The lower rate of invocation of this provision since the early 1990s can be attributed to the proactive role taken by the Supreme Court in the cases of S.R. Bommai v Union of India (1994)22 and Rameshwar Prasad v Union of India (2006).23 In both cases, the Supreme Court showed that it was willing to adopt creative interpretations of the provisions involved to impose checks and balances on their use, including conducting a basic review of the grounds on which the President exercised his power. This, more than any change in the actual text of the provision and coupled with the changing political context in India which witnessed coalition governments from the early 1990s onwards, seems to have stemmed the abuse of Article 356. In the most recent past, since the ascension to power of the Modi Government in May 2014, there has been renewed invocation of President\u2019s Rule in the States of Arunachal Pradesh (June\u2013August 2015) and Uttarakhand (April 2016). It is too early to tell whether this signals yet another chapter in the tortuous saga of","Article 356; a lot will depend on how the judiciary reacts to the renewed manipulation of the provision. D. Fiscal Federalism: The Distribution of Revenues and Finances Between the Union and the States One of the requirements of a classic federal Constitution is that \u2018both general and regional governments must each have under their own independent control financial resources sufficient to perform their exclusive functions\u2019.24 The Indian case fits this classic notion of federalism rather poorly. Once again, it is a contextual understanding of the existing historical circumstances that enables an understanding of the reasons for this particular departure from the norm. Austin invokes the familiarity of the leaders of the Indian National Congress with the working of the Act of 1935 as a reason, since most of the constitutional provisions in relation to finance are closely modelled on that statute. This, according to Austin, has resulted in a situation \u2018making the union government the banker and collecting agent for the state governments\u2019.25 Another factor worth recalling is that the provinces had a relatively low bargaining status: no provincial delegation could quit the Assembly and this had to be borne in mind while negotiating for claims on behalf of the provinces in the Constitution. A significant factor that contributed to this mindset was the extremely unstable and uncertain financial situation confronting the newly formed nation. All of this reinforced the view that finances should be tightly regulated and carefully controlled, preferably through a centralised system. There was also a consensus among the decision makers in the Assembly that the primary consideration for distribution of revenues should be based on the \u2018need\u2019 of provinces. This was against the reality (then and now) that the provinces in India vary greatly in their access to resources and wealth, resulting in some being very rich while many others are poor and in need of support for providing social welfare and development related services. The response of the Assembly was to adopt the following arrangement: certain basic taxes and revenue from them were to be left within the legislative jurisdiction of the provinces but the most lucrative tax heads were to be levied and collected by the Union and distributed among the provinces according to their need.26 The result of such a logic was an","increase in the authority of the Union, which also became the arbiter of which province was deservedly needy and how much proportion of revenues it was entitled to, over or below the entitlement of other provinces. Recognising that this important power was a great one, and hence capable of being abused, the framers sought to empower the Finance Commission to play the role of guardian. We now turn to the actual provisions in the Constitution which reflect the final decisions of the Assembly on issues of distribution of revenues and finance summarised above. Part XII of the Constitution is entitled \u2018Finance, Property, Contracts and Suits\u2019 and comprises Articles 264\u2013300A. A section of this Part, consisting of Articles 268\u2013281, is entitled \u2018Distribution of Revenues between the Union and States\u2019. Article 280 provides for the creation of a Finance Commission, which, as noted above, has a significant role to play in the distribution of revenues because the Constitution only outlines how certain revenues are to be levied and collected but does not prescribe how the proceeds are to be distributed. The Finance Commission is bestowed with the important power to decide how to make adjustments in the distribution of revenues and thus affect the balance of the federal system. As noted above, the provisions in this section of the Constitution authorise the allocation of the more lucrative sources of revenue such as import or export duties, non-agricultural income tax and corporate taxes to the Union government. The Union is also empowered, as we have seen, to levy residual tax powers. The revenues of the States arise from four principal sources: (i) tax and expenditure derived from subjects set out in the State List of the Seventh Schedule; (ii) transfers allocated by the Finance Commission (Article 275); (iii) transfers from the Planning Commission (an extra-constitutional body set up by Prime Minister Nehru which came to assume significant powers in the Nehruvian era but has since 2014 been demoted to one of lesser status); and (iv) transfers from central ministry budgets to the States. The transfers in the latter category assume the form of grants and loans to the States.27 Although States could potentially levy taxes on a host of subjects in the State List, in practice only the tax on sale of goods has turned out to be significant for State revenues.28 This is also because, under pressure of populism, many States have either done away with or drastically reduced the taxation on land and income from agriculture. This has resulted in a","drastic reduction of the capacity of States to finance both revenue and capital expenditure from their own resources: in 2000\u201301, only 42 per cent of the States\u2019 total expenditure was covered by their own revenue receipts.29 The Finance Commission sought to remedy this situation by allocating resources based on changing criteria. From 1950 to 1995 all the Finance Commissions worked on the original criterion of \u2018need\u2019 to make recommendations for distribution of revenues, which were invariably followed without question. Starting from the Tenth Finance Commission (1995\u20132000), the earlier trend witnessed a change, arguably as a result of policies of liberalisation that were introduced into the Indian economy in the early 1990s. This is evident also in the attempt of the Thirteenth Finance Commission (2010\u201315) to assign greater weight to economic performance of States over the older criteria of population and backwardness.30 The introduction of a General Sales Tax through the 101st constitutional amendment (2016) is viewed as a significant change. It bears the promise of further altering the evolving shape of fiscal federalism in contemporary India. The original constitutional provisions relating to distribution of revenues have undergone several changes, either because of express constitutional amendments or due to changes brought about in the interpretation of the provisions by the courts.31 As we will see, changes in the political landscape of post-independence India have sometimes had a profound effect on federal\u2013State relations in other contexts. Overall, in the assessment of a leading scholar, \u2018the Constitution of India has provided a durable and flexible, if imperfect, framework for India\u2019s fiscal federal arrangements\u2019.32 E. Provisions Exemplifying Asymmetric Federalism in India One of the features of a classic federal state is that it treats its constituent units equally and provides some guarantee that they will not be treated unequally, and hence, unfairly in relation to each other. By this logic, federalism necessarily has to be symmetrical. Indeed, the scholar who coined the term \u2018asymmetrical federalism\u2019 gave it a negative connotation, focusing on its \u2018secession potential\u2019.33 In more recent work, other scholars","have given it a positive normative connotation by considering polities that subscribe to this concept as those which \u2018in order to \u201chold together\u201d their great diversity in one democratic system, had to embed in the Constitution special cultural and historical prerogatives for some of the member units, prerogatives that respond to their somewhat different linguistic or cultural aspirations, demands, and historical identities\u2019.34 Not surprisingly, the principal focus of these scholars is on Indian federalism which, they assert, was an early exemplar of the \u2018asymmetric federalism\u2019 model. India\u2019s federal model is rife with asymmetries. As we have noted, the original classification of States was based on their different pedigree and needs. Even today, the States and Union Territories are treated differently and there are further differences between the Union Territories themselves and the National Capital Territory of Delhi, which enjoys a unique status. Besides these, there are three major types of asymmetry in Indian federalism, First, Article 370 provides an example of asymmetric federalism because it grants the State of Jammu and Kashmir, which is the only State to have its own Constitution, autonomy in respects that other States in India are not entitled to (at least in theory).35 The second major example of asymmetric federalism in India is the special measures for \u2018Scheduled Tribes\u2019 set out in the Fifth and Sixth Schedules to the Constitution. The Fifth Schedule applies to majority tribal districts outside of the north-east States, and enables the Union government, acting through the Governor, to intervene to aid the socio-economic development of tribal populations. Each State covered by the Fifth Schedule is to establish a Tribal Advisory Council and the Governor is empowered to declare that particular parliamentary or State legislative enactments are not to apply to Scheduled Areas. The Sixth Schedule applies to States in the north-east of India and creates entities referred to as \u2018Autonomous District Councils\u2019 (ADCs), which are given more extensive powers of self-governance and have been established in the States of Assam, Meghalaya, Tripura and Mizoram. The third category of asymmetric treatment is to be found in the special provisions for other States that are captured in the 11 provisions that constitute Articles 371\u2013371J.36 These consist of special arrangements for new States that have been created or admitted since independence as a result of two types of processes: the reorganisation of State boundaries, which gave rise to concerns about intra-State equity in newly merged regions, and the resolution of ethnic conflicts in the north-east States. As","noted earlier, the Indian Union\u2019s willingness to make such special concessions to individual federal units has been praised by scholars as contributing to the integration of States that have at times experienced secessionist movements, and for facilitating plural identities and avoiding the perils of the creation of uniform national identities.37 At the same time, other scholars have doubted how committed the Indian State is to the asymmetric model, whether it alone can explain the relative success of the Indian federation, and whether the States that are the ostensible beneficiaries of asymmetric provisions are actually benefiting from them.38 It has been noted, for instance, that asymmetric options were not considered in dealing with the tensions with two of India\u2019s major States \u2014Tamil Nadu (1950s\u20131960s) and Punjab (1980s).39 The debate over whether India\u2019s asymmetric features enhance or curb its unique model of federalism is thus an open and continuing one. F. Assessing the Evolution of the Federal Model in India Across Its Post-independence Years Bargains about federalism are deeply intertwined with contemporaneous socio-political issues. If India\u2019s economic and political situation in 1947 had been more stable, perhaps the need for ensuring national unity and focusing on a top-down model of development would have been less pressing and the Constitution\u2019s provisions relating to federalism would have evolved differently. Scholars of federalism in India generally agree that the post- independence evolution of federalism in India has similarly been affected by socio-political and economic changes across the decades since independence. In this section I seek to cover some of this discussion, to provide a sense of these changes and their momentous consequences. Lloyd and Susan Rudolph have argued that federalism in post- independence India has transformed from \u2018a relatively centralised \u201cold\u201d to a relatively decentralised \u201cnew\u201d federalism\u2019.40 According to this analysis, the period of four decades from 1950 to 1990 can be characterised as exemplifying the \u2018old\u2019 federalism model, while the period from 1990 onwards is representative of the \u2018new\u2019 model. For the Rudolphs, the following features were prominent in the \u2018old\u2019 model: (i) a planned","economy which was characterised by Prime Minister Nehru\u2019s desire to industrialise India through a process of central planning for which the extra- constitutional Planning Commission was created; (ii) the existence of a one- party dominant system which enabled the Indian National Congress to counter the constitutional divisions of functions across many levels; (iii) a model of fiscal federalism where the Union government and Finance Commission, which took cues from the Union government, dictated terms to the States with hardly any resistance. By contrast, the \u2018new\u2019 federal model that began to emerge from 1989 onwards had the following characteristics: (i) the replacement of the planned economy with a market economy, which saw a diminishing role for centralised institutions such as the Planning Commission, replaced instead by a growing role for State Chief Ministers and entrepreneurs; (ii) the substitution of a one-party dominant system with that of a multiparty system, where regional parties began to play a key role in the formation of coalition governments at the centre and in the making of policy decisions; and consequently, (iii) the transformation of the model of fiscal federalism, which in turn witnessed State Chief Ministers pushing back against traditional directives issued by the Finance Commission and demanding market-based measures to determine allocation of revenues and funds.41 It is clear that India\u2019s complex model of federalism will continue to evolve to meet the demands of its ever-changing political landscape. The attempt here has been to provide a brief overview of its overall features and to outline a narrative of their evolution up to the present time. V. THE STRUCTURE AND CONTENT OF PROVISIONS IN THE INDIAN CONSTITUTION ON LOCAL GOVERNMENT AND THEIR EVOLUTION OVER TIME A. Background and Post-independence History of Local Government Initiatives The story of how local government institutions found constitutional recognition nearly four-and-a-half decades after they were given short shrift at the time of the founding of the republic is a long and fascinating one, with complex political motivations guiding different actors at different points of time.","As noted earlier, the framers of the Constitution did not make a binding commitment in relation to issues of local government beyond the vague allusion in Article 40 to the ideal of village panchayats. However, this did not mean that ideas of what a leading scholar has termed \u2018democratic decentralisation\u2019 did not find favour with leaders and elites within the political system.42 So, even while Prime Minister Nehru was committed to the centralised State that he felt was essential for creating the levels of economic development that had been denied to India under colonial rule, he also championed institutions of local governance and community development.43 Equally committed were Gandhians such as Vinobha Bhave and Jayaprakash Narayan, who kept up the aspiration for a village republic by making demands for local governance in both rural and urban areas. Through 1947 to the mid-1960s, various efforts were made to enhance local government initiatives, including the launching of the Community Development Programme in 1952.44 The aspirations for local government were kept alive through and in a number of government committee reports authored by various significant figures over a period of time. In 1957 the Balwantrai Mehta Committee was established as the Community Development Programmes were perceived, after having been in existence for five years, to be ineffective. The Mehta Committee recommended several measures to strengthen local government initiatives, especially in rural areas. Similarly, the K Santhanam Committee in 1963 and the Ashok Mehta Committee in 1977 also made significant recommendations urging the adoption of local government institutions. In part as a result of these and other initiatives, local governments had been established in most parts of India by the early to mid-1960s: these included 60,000 village panchayats, 7,500 panchayat samitis (or panchayat Societies), and 330 Zilla Parishads (or District Boards). The situation with respect to urban local bodies was less impressive, in part because most municipalities across the country were vulnerable to supersession by State governments. A mere decade later, the situation had transformed: under Prime Minister Indira Gandhi, who was among the most centralising of India\u2019s several Prime Ministers, local governance initiatives came to a near standstill. The situation changed again when the first non-Congress government came to power at the central level in 1977, following the defeat of the Indira Gandhi government in the elections held in the aftermath of the Emergency.","The Janata Government was in favour of local government structures: one scholar has speculated that this was motivated also by the Janata Party\u2019s need to break the political patronage network of the Congress Party, which had entrenched itself after nearly a quarter of a century in power at the centre.45 A similar political logic may have motivated two other initiatives, also by opposition party governments, to promote local government initiatives at the State level in two major States. The first was by the government of the Communist Party of India (Marxist) in West Bengal, which came to power in 1977 and sought to revive legislation regarding local government institutions. The second was the efforts at local government taken by the Ramakrishna Hegde government in Karnataka after 1983.46 Local government reform measures found crucial support among civil society activists as well. By the early 1990s it had become clear that a half century of \u2018pro-poor\u2019 social and economic policies, all of which had adopted a top-down planning model, had not had much effect on the ground. Many civil society and social movement actors were convinced that going beyond these policies, it was necessary that a system which enabled the delivery of social services on the ground and ensures accountability for public programmes at the local level, was introduced. Many such groups thus began backing the idea of local government institutions both at the rural and urban level.47 Ultimately, however, it was only when the Congress government under Prime Minister Rajiv Gandhi became committed to the need for local government reform that a central Bill was sought to be passed in 1988. It failed to pass in the Rajya Sabha, in part because the opposition parties perceived the initiative as an attempt to make a direct connection between the central and local governments, bypassing the State governments, many of which were ruled by non-Congress governments. By the early 1990s, however, there was a recognition among all political parties that the nature of the old politics had changed and pushing for local government initiatives would benefit various political alignments. The demise of the hegemony of the Congress Party meant that a host of new parties had emerged, several of which had regional, linguistic and caste- based constituencies, which would stand to benefit from stronger attempts at entrenching local government institutions with greater representation for women and lower caste and underprivileged groups. At the same time, the","changed scenario also presented opportunities for the Congress Party to reinvent itself and begin a new phase of dominance. It is this political dynamic that explains the relative ease with which the 73rd and 74th constitutional amendments passed in both houses of Parliament in 1992, whereas only four years previously they had been the subject of a pitched battle. B. The Text, Structure and Content of the Provisions Relating to Local Government The 73rd and 74th amendments introduced two new Parts into the Constitution: Part IX (entitled \u2018The Panchayats\u2019 and consisting of 16 provisions numbered as Articles 243\u2013243O) and Part IXA (entitled \u2018The Municipalities\u2019 and consisting of 18 provisions numbered as Articles 243P\u2013 243ZG). These provisions mandate the creation of rural and urban local government institutions. The former include panchayats at three levels: the village (called \u2018Gram Sabhas\u2019), the \u2018intermediate\u2019 and the \u2018district\u2019. Municipalities are of three kinds: Nagar Panchayats for areas transitioning from rural to urban; Municipal Councils for smaller urban areas; and Municipal Corporations for larger urban areas. It must be emphasised that the new constitutional provisions do not by themselves mandate the implementation of local self-government. Instead, while authorising the creation of local self-governing bodies, they leave the question of delegating powers and functions to these bodies to the State legislatures. This aspect has been criticised for weakening these institutions. However, it is arguable that this is a necessary measure to ensure that the legitimate role of State legislatures in making local government institutions become operational is recognised. Otherwise, the argument goes, these local government bodies would be perceived as measures by which the central government could seek to bypass and undermine State governments. The 73rd and 74th constitutional amendments also introduced two new schedules to the Constitution: the Eleventh Schedule, listing 29 entries on which village panchayats can be empowered to make laws upon by the relevant State legislature, and the Twelfth Schedule, which similarly lists 18 entries upon which municipalities can be given legislative power by the relevant State legislature. These entries touch upon issues such as","education, health, child welfare, farm and non-farm activities, and infrastructure for development-related activities. One of the most significant changes that these provisions introduced was the constitutional recognition of elected local body representatives, adult franchise for this process and the introduction of legislative quotas or reservations for women and lower caste groups. It is clear that these provisions are creating a democratic revolution: there are now over 3 million elected representatives in panchayats and municipalities. Over 1 million of these are women, while Dalits and tribals are also represented as per their proportion in the population.48 The constitutional provisions also envisage the creation of State Finance Commissions, mirroring the Finance Commission at the centre, to review the finances of panchayats and municipalities, and to decide on State funds to the different layers of local government bodies. C. Assessing the Impact of the Introduction of Local Government Institutions One of the major paradoxes of Indian democracy as it has evolved in relation to issues of federalism and local government is that the very same State governments that have been extremely vocal in demanding more powers, finances and authority for State governments in the context of India\u2019s evolving federal model are also the ones who have become the principal obstacles for empowering local government institutions established by Parts IX and IXA of the Constitution. Such institutions of local government rely heavily upon State governments to empower them both administratively and fiscally, as the constitutional provisions only ensure their political existence and sustenance through regular elections. Across the nearly quarter century that these provisions have been in existence, very few State governments have demonstrated the necessary political will to fully implement these constitutional provisions. In many situations, panchayats and municipalities are seen as additions to and not as replacements of the existing administrative structures. Thus, many local government institutions have become mere agencies to implement centrally sponsored schemes. The reluctance of State governments to implement the terms of the Eleventh and Twelfth Schedules has led some scholars to note","that \u2018state governments are more zealous for transfer of powers from the centre to the states than for [further] devolution\u2019.49 This had led a motivating figure behind the 73rd and 74th amendments to conclude that they were \u2018failed attempts to widen and deepen federalism\u2019.50 Yet other scholars have, however, noted that despite this reality, the fact remains that many positives have emerged. There is no question that there has been a democratic upsurge and that the elected representatives in Gram Sabhas and municipalities are making a difference to the political culture at the grassroots and are making their presence felt. Other scholars report that despite having few autonomous powers in relation to finance, \u2018fiscal decentralization, in terms of local government having increased funds at their disposal, has clearly occurred over the past two decades in India\u2019.51 Also, the local government bodies are now able to give \u2018voice and representation to poorer and generally more vulnerable groups, thereby instituting a system of affirmative action that is intended to improve the welfare of more vulnerable groups over the long term\u2019.52 VI. CONCLUSION This chapter has focused greatly on the colonial period and the framing of the relevant constitutional provisions in the Constituent Assembly for the reason that those factors continue to dominate how issues of federalism and local government are perceived and negotiated in contemporary India. This is not to suggest, however, that that biography will be determinative of the evolution of federalism and local government in India in the future. As briefly noted, considerable changes have been afoot in recent years. What is interesting about these changes is that very few of them involve actual changes to the textual provisions in relation to federalism and local government in the Indian Constitution. It should be noted that one consequence of the \u2018basic structure\u2019 doctrine formulated by the Supreme Court of India\u2014which we will examine closely in Chapter 7\u2014is that the federal nature of the Indian Constitution cannot be amended away by Parliament as it has been adjudicated to be part of the \u2018basic structure\u2019 of the Constitution of India. Nevertheless, it is important to remember that Constitutions change not only through formal amendments; at times they change informally in response to shifts in economic and political trends. Such changes, even","though they do not result in textual changes, can lead to a complete transformation of the concepts and institutions involved. Some contemporary scholars have asserted the belief that federalism in India has been in a state of flux in recent years. This is particularly so in relation to issues of fiscal federalism and the growing tensions between rich and powerful States which no longer accept the traditional rules for distributing revenues under the model set out in the Constitution. An aspect that is increasingly viewed as failing is the mechanisms for coordinating actions and interests among the States and for their disputes with each other, on the one hand, and the Union on the other. Similarly, despite the limitations of the textual provisions relating to local government in India, it is clear that they have unleashed new forces of democratic decentralisation which cannot be contained by old mechanisms. The numerous elected representatives are slowly but surely making claims to their due administrative and fiscal powers, which will eventually develop to complement the political power that they already possess under the constitutional amendments enacted in 1992. It is thus clear that India\u2019s models of federalism and local government will continue to witness change and evolution in the foreseeable future. There is also no doubt that the manner in which they have evolved over the post-independence phase of India\u2019s history has led to a considerable deepening of its constitutional democracy. FURTHER READING Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi, Oxford University Press, 1966). Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (New Delhi, Oxford University Press, 2000). Niraja Gopal Jayal, Amit Prakash and Pradeep Sharma (eds), Local Governance in India (New Delhi, Oxford University Press, 2007). Sudhir Krishnaswamy, \u2018Constitutional Federalism in the Indian Supreme Court\u2019 in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge, Cambridge University Press, 2015) 355\u201380. James Manor, \u2018Local Governance\u2019 in Niraja Jayal and Pratap Mehta (eds), The Oxford Companion to Politics in India (New Delhi, Oxford University Press, 2010) 61\u201379. Kuldip Mathur, Panchayati Raj, Oxford India Short Introductions (New Delhi, Oxford University Press, 2013). Subrata K Mitra and Malte Pehl, \u2018Federalism\u2019 in Niraja Jayal and Pratap Mehta (eds), The Oxford Companion to Politics in India (New Delhi, Oxford University Press, 2010) 43\u201360.","Anirudh Prasad, Centre\u2013State Relations in India: Constitutional Provisions, Judicial Review, Recent Trends (New Delhi, Deep and Deep Publications, 1995). MP Singh, \u2018The Federal Scheme\u2019 in Sujit Choudhry, Madhav Khosla and Pratap Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford, Oxford University Press, 2016) 451\u201365. Nirvikar Singh, \u2018Fiscal Federalism\u2019 in Sujit Choudhry, Madhav Khosla and Pratap Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford, Oxford University Press, 2016) 521\u201339. K Sivaramakrishnan, \u2018Local Government\u2019 in Sujit Choudhry, Madhav Khosla and Pratap Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford, Oxford University Press, 2016) 560\u201380. 1 Sugata Bose and Ayesha Jalal, Modern South Asia: History, Culture, Political Economy, 3rd edn (New Delhi, Routledge, 2011) 207. 2 Mahendra Prasad Singh, Indian Federalism: An Introduction (Delhi, National Book Trust, 2011) 20. 3 For more details on the Princely States, see generally Barbara Ramusack, The Indian Princes and their States (Cambridge, Cambridge University Press, 2004) 245\u201374 (focusing on federalism issues in particular). 4 \u2018Relations Between the Union and the States\u2019 in B Shiva Rao (ed), The Framing of India\u2019s Constitution: A Study (Delhi, Universal Law Publishing Co, 1968, reprinted 2010) 592\u201395. 5 AB Keith, A Constitutional History of India, 1600\u20131935 (New Delhi, Pacific Publication, 2010) 354\u201359. 6 KC Sivaramakrishnan, \u2018Local Government\u2019 in Sujit Choudhry, Madhav Khosla and Pratap Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford, Oxford University Press, 2016) 562. 7 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford, Oxford University Press, 1966, reprinted in 2013) 235. 8 Francine R Frankel, India\u2019s Political Economy 1947\u20132004, 2nd edition (Oxford, Oxford University Press, 2005) 74. 9 Austin (n 7) 239. 10 ibid 236. 11 Subrata K Mitra and Malte Pehl, \u2018Federalism\u2019 in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), The Oxford Companion to Politics in India (Oxford, Oxford University Press, 2010) 46\u201347. 12 Austin (n 7) 294\u2013302. 13 Ramachandra Guha, India after Gandhi (London, Macmillan, 2007) 180\u2013200 at 200. See also Domenico Amirante, \u2018Nation-building through Constitutionalism: Lessons from the Indian Experience\u2019 (2012) 42 Hong Kong Law Journal 23, 34\u201335. 14 Louise Tillin, Remapping India: New States and Their Political Origins (New Delhi, Oxford University Press, 2013) 1. Tillin sets out the following major dates as representing major moments in the reorganisation of states in India: 1950 (creation of Part A, B and C states); 1953 (creation of","Andhra); 1956 (creation of Andhra Pradesh, Assam, Bihar, Bombay, Delhi (UT), Himachal Pradesh (UT), Jammu and Kashmir, Kerala, Madhya Pradesh, Madras, Manipur (UT), Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, Tripura (UT) and West Bengal); 1960 (Bombay divided into Gujarat and Maharashtra); 1962 (Goa, Daman and Diu); 1963 (Nagaland); 1966 (Punjab divided into Punjab and Haryana); 1971 (Himachal Pradesh made into a state); 1972 (Meghalaya created from Assam, Arunachal Pradesh (UT), Mizoram (UT), Manipur and Tripura given statehood); 1975 (Sikkim); 1987 (Arunachal Pradesh, Mizoram and Goa given statehood); 2000 (creating Chattisgarh, Jharkhand and Uttarakhand); ibid 209\u201310. To this can be added 2014 (Telengana), an event that occurred after the publication of Tillin\u2019s book. 15 Austin (n 7) 198\u201399. 16 Constituent Assembly Debates (CAD) VII 1, 35\u201336. 17 For details of some of these innovative court actions, see Madhav Khosla, The Indian Constitution (New Delhi, Oxford University Press, 2012) 48\u201366. Also see Sudhir Krishnaswamy, \u2018Constitutional Federalism in the Indian Supreme Court\u2019 in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge, Cambridge University Press, 2015) 355\u201380. 18 Ravi P Bhatia, \u2018Federalism in India and the Supreme Court Rulings\u2019 in BD Dua and MP Singh, Indian Federalism in the New Millennium (New Delhi, Manohar, 2003) 231. 19 CAD IX 4, 151. 20 Austin (n 7) 267. 21 Mitra and Pehl (n 11) 51. 22 S.R. Bommai v Union of India, AIR 1994 SC 1918. 23 Rameshwar Prasad v Union of India, AIR 2006 SC 980. 24 KC Wheare, Federal Government, 4th edn (London, Oxford University Press, 1963) 97. 25 Austin (n 7) 275. 26 ibid 276. 27 Mitra and Pehl (n 11) 52. 28 Nirvikar Singh, \u2018Fiscal Federalism\u2019 in Sujit Choudhry, Madhav Khosla and Pratap Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford, Oxford University Press, 2016) 4. 29 Nirvikar Singh, \u2018India\u2019s System of Intergovernmental Fiscal Relations\u2019, Working Paper, Santa Cruz Department of Economics, University of California, 2004. 30 Singh (n 2) 166\u201367. 31 ibid. 32 ibid. 33 Charles Tarlton, \u2018Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation\u2019 (1965) 27(4) Journal of Politics 861\u201374. 34 Alfred Stepan, Juan Linz and Yogendra Yadav, Crafting State Nations (Baltimore, MD, John Hopkins University Press, 2010) 5. See also the discussion of asymmetric federalism in Khosla (n 17) 74\u201386. 35 As Louise Tillin notes, \u2018the extension of very numerous constitutional provisions to Jammu and Kashmir via presidential orders has reduced the extent to which Article 370 has functioned as a form of ethnic conflict management\u2019. See, Louise Tillin, \u2018Asymmetric Federalism\u2019 in Sujit","Choudhry, Madhav Khosla and Pratap Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford, Oxford University Press, 2016) 545\u201347. 36 These provisions deal respectively with special provisions for the states of Maharashtra and Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka. 37 Stepan et al (n 34) 5. See also Domenico Amirante, \u2018Nation Building through Constitutionalism: Lessons from Indian Constitutionalism\u2019 (2012) 42 Hong Kong Law Journal 23\u2013 42. 38 Louise Tillin, \u2018United in Diversity, Asymmetry in Indian Federalism\u2019 (2007) 37(1) Publius: the Journal of Federalism 45\u201367; Khosla (n 17) 85\u201386 (questioning whether Jammu and Kashmir and the north-east states have benefited from the asymmetric provisions carved out for them). 39 Tillin (n 38) 47. 40 Lloyd I Rudolph and Susanne Hoeber Rudolph, \u2018The Old and the New Federalism in Independent India\u2019 in Paul Brass (ed), The Routledge Handbook of South Asian Politics (London, Routledge, 2010) 147\u201361. 41 See also the analysis of Mitra and Pehl, who consider the evolution of federalism in post- colonial India across three phases: Phase I (lasting from 1950 to 1965) characterised by Prime Minister Nehru\u2019s statesmanlike approach to federal issues; Phase II (lasting from 1967 to 1989), which initially saw the decline of the Congress, and which led Prime Minister Indira Gandhi to adopt radical measures to shore up her centralised form of leadership; and Phase III (1989\u2013present), which is characterised by coalition governments at the centre and the rise of regional parties. Mitra and Pehl, like the Rudolphs, also consider the impact of policies of liberalisation since the 1990s. Mitra and Pehl (n 11) 45\u201346. 42 James Manor, \u2018Local Governance\u2019 in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), The Oxford Companion to Politics in India (Oxford, Oxford University Press, 2010) 62. 43 Rani D Mullen, Decentralization, Local Governance, and Social Wellbeing in India (London, Routledge, 2010) 28. 44 Manor (n 42) 63. 45 Mullen (n 43) 29. 46 Manor (n 42) 64. 47 Mullen (n 43) 21\u201322. 48 Kuldeep Mathur, Panchayati Raj (New Delhi, Oxford University Press, 2013) 134. 49 Singh (n 2) 179. 50 Sivaramakrishnan (n 6) 578. 51 Mullen (n 43) 38. 52 ibid 51.","4 Fundamental Rights, Directive Principles and the Judiciary Constitutional history and text of relevant provisions \u2013 Evolution of institutional role of the Indian Supreme Court over five phases \u2013 The crisis of backlog and delay I. INTRODUCTION This chapter focuses on constitutional provisions that address three vital issues: (i) the Fundamental Rights, (ii) the Directive Principles and (iii) the model of a unitary judiciary established by the Constitution of India. The most important role of the Indian judiciary, arguably, is to safeguard, advance and secure the Fundamental Rights guaranteed by the Constitution. However, as will become clear, the framers of the Indian Constitution had several other roles in mind for the judiciary, including being a final court of appeal for all legal issues emanating across the nation, and serving as the referee for maintaining harmonious relations between the Union and the States in India\u2019s complex model of federalism. This latter role of the judiciary was briefly summarised in Chapter 3 while dealing with India\u2019s model of federalism and local government. That chapter also covered the role of the judiciary in shaping federal relations across six decades of the working of the Constitution. This chapter therefore focuses on the institutional character and role of the judiciary, which has evolved over time as it has sought to advance and","adapt to the demands of safeguarding the Fundamental Rights and Directive Principles. This then is the justification for treating these important but seemingly disparate issues within the same framework. This chapter will seek to argue that while the changing role of the Indian judiciary has much to do with wider changes in the socio-political landscape of the Indian polity, it is also linked to the way judges have changed their interpretive approach to the Rights and Principles over time. The chapter focuses on the well-acknowledged fact that the Indian judiciary has played a vital role in sustaining its constitutional democracy. This fact is even more striking when the Indian experience is compared to that of its judicial counterparts in the immediate South Asian context, where judiciaries have struggled to establish themselves and maintain their independent existence in countries such as Pakistan, Bangladesh, Sri Lanka and Nepal. While this fact is well known, credit for it is usually given to the vision and leadership of judges in India and to wise political leaders who conceded space to judges at crucial times. Less credit is given to the vision of the framers of India\u2019s Constitution, who laboured mightily to debate the conditions that would help entrench an independent and democracy-enhancing judiciary in India. This chapter is divided into four sections. Following this introductory section, Section II deals with the provisions of the Constitution and seeks to analyse the textual scaffolding to draw conclusions about the motivations of categorisations and to infer what has been included, what has been left out, and what may have caused such inclusions and exclusions. This section focuses on the extensive textual provisions relating to the Fundamental Rights, the Directive Principles and the judiciary. It is important to do so because the Indian Constitution was unprecedented at the time of its creation\u2014though it may not be so now\u2014in the level of detail it contains on these issues. This, among other things, exhibits the conviction of the framers that the matters at stake were pivotal to the successful working of the Constitution as a whole. While much has been made of the essential continuities between the colonial legal structure and the post-constitutional order, it is the content of this chapter that makes the novel contributions of the framers of the Indian Constitution stand out. As will become clear, the colonial regime for the most part rejected the discourse of rights and entitlements on the part of the subject population. The colonial judiciary, on the other hand, saw itself more as a subordinate ally of the regime than as an instrument to check the excesses of the other wings of government or as","a guardian of the values of the people. The provisions we focus upon also provide an insight into what the framers felt was critical for the audacious Indian constitutional experiment to succeed. Section III focuses on the relevant constitutional history for these provisions. Here we depart from the norm in this book, where this typically takes up considerable space. The reason is that some of the history for these provisions has been covered quite extensively in Chapter 2. Section III covers the experience of the colonial judiciary to provide context for the changes that were made to that system by the Constitution. As in other chapters, the latter half of this chapter too will focus upon the developments that occurred in the six decades of the working of the Constitution. However, more than in other chapters, the emphasis will also be on assessing the significance of the original constitutional provisions, which marked quite radical departures from pre-existing practices and could be said to have contributed greatly to the robust rights discourse that the increasingly powerful judiciary could deploy to enhance its own powers and jurisdiction. Section IV focuses on the role of the Supreme Court of India in interpreting the rights provisions from independence until the present time, seeking to identify broad trends across the six-and-a-half decades that the Constitution has been in force. This will necessarily have to be a summary \u2014and selective\u2014survey since both the volume and range of cases is large. This section will also focus, relatedly, on the consequences of such trends for the understanding of the Fundamental Rights and Directive Principles. The claim is that these developments were inextricably intertwined and cannot be understood in isolation from each other. Section V focuses on the extremely distressing levels of backlog and pendency in the Indian judicial system, which are greatly impeding its ability to function at a reasonably acceptable level. This failing too, as it turns out, is something that can be ascribed to constitutional design. II. RELEVANT CONSTITUTIONAL PROVISIONS: TEXTUAL CATEGORISATION AND ANALYSIS This section provides a brief overview of the textual provisions relating to rights, principles and the judiciary. While Bills of Rights were not drawn up from scratch by the framers of the Indian Constitution (indeed, they","expressly drew inspiration from earlier efforts and sought openly to emulate them), their efforts at identifying particularities were innovatively extensive. It is for this reason that their efforts came to be studied closely by Constitution makers who sought inspiration for their own Constitutions across the next half-century, extending from countries in Southeast Asia to Southern Africa. A. Fundamental Rights The \u2018Fundamental Rights\u2019 guaranteed to Indians are outlined in Part III of the Constitution of India, which consists of 23 provisions (Articles 12\u201335). The rights guaranteed by this Part are classified under eight sub-headings. Six of these sub-headings guarantee the following categories of rights: the right to equality (Articles 14\u201318); the right to freedom (Articles 19\u201323); the right against exploitation (Articles 23\u201324); the right to freedom of religion (Articles 25\u201328); cultural and educational rights (Articles 29\u201330); and the right to constitutional remedies (Article 32). The remaining two categories include a \u2018General\u2019 section and another that seeks to save certain laws. The General section includes a definitions clause (Article 12) and a significant provision (Article 13) which declares that any laws made in contravention of the rights provisions will be void. This provision, by implication, vests in the judiciary the power to strike down parliamentary laws. This, then, is the source of the important power of judicial review over legislative and administrative action that is vested in the Indian judiciary. India\u2019s judiciary is regarded as one of the most powerful in the world today but it is generally assumed\u2014wrongly\u2014that the Constitution of India expressly vests the power of judicial review over legislation in the courts. As we will see over the course of this chapter, the Constitution, in its text, does vest important powers in the courts. However, these have been significantly expanded by the courts, largely through a process of judicial interpretation. The rights guaranteeing equality consist of a general guarantee of equality and equal protection of the laws (Article 14) followed by a prohibition of discrimination on specified grounds (Article 15) and a provision that guarantees equality of opportunity in matters of public employment (Article 16). The framers\u2019 intention to act against the legacies of the caste system is most visible in the text of Article 17, which formally","abolishes the caste practice of \u2018Untouchability\u2019 while also making it a criminal offence. Article 18 manifests a particularised concern about equality\u2014seeking to reverse the colonial practice of co-opting elites by conferring hereditary titles\u2014by prohibiting the conferral of titles by the post-colonial State. Articles 19\u201323 guarantee several facets of freedoms to Indians. The most elaborate of the provisions is Article 19 which, through sub-clauses (a) to (g) of its first clause, guarantees the freedoms of speech and expression, peaceful assembly, association, movement and residence throughout the territory of India, and the freedom to practise any profession or carry on any occupation, trade or business. Originally, Article 19(1)(f) guaranteed a right to property, which was, as we shall see, the subject of a heated contest between the legislature and the judiciary and was ultimately amended out of Part III and inserted as Article 300A, making it a non- fundamental yet a constitutional and legal right. What is striking about the text of Article 19 is its framing and style. Clause 1 lists out the right or freedom guaranteed, before each of the remaining clauses goes on to list the grounds on which the particular right can be restricted through a Parliamentary law. On its face, this suggests that the restrictions can potentially overwhelm the right granted. However, as Ambedkar noted on the floor of the Constituent Assembly, the intention was quite the opposite \u2014the motivation for listing out all the restrictive grounds was to ensure that no other ground could be conjured up by the legislature, thereby outlining a classically \u2018liberal\u2019 view on the part of the framers. That said, the grounds on which each individual freedom guaranteed by Article 19(1) can be restricted varies, often with few clues to the motivating logic. So, for instance, \u2018morality\u2019 is a valid ground for Parliament to restrict the freedoms of speech and the freedom to form associations (under Clauses 2 and 4 of Article 19), but is not a valid ground for restricting the right to assembly (under Clause 3 of Article 19). Articles 20\u201322 deal with freedoms which become especially relevant in the context of situations such as criminal proceedings when issues of life and liberty come to the fore. Article 21, in its text, is a guarantee that a person can be deprived of life or liberty only after following a procedure established by law. This seemingly simple provision has played a disproportionately significant role in the flowering of constitutional rights in India, including, as we shall presently see, in providing the link between","the Fundamental Rights and Directive Principles. Article 21A, which was introduced in 2002, establishes a Fundamental Right to education for children between the ages of 6 and 14. Article 20\u2019s three clauses enshrine guarantees against retrospective application of criminal laws, while also prohibiting self-incrimination and double jeopardy. Article 22 outlines protections against arrest and preventive detention and includes guarantees such as the requirement of producing an arrested person before a magistrate within 24 hours (Clause 2). What is striking about Clauses 4\u20137, which deal with preventive detention, is that while seeking to provide protective guarantees to those who are preventively detained, the provisions also empower the preventive detention system by enabling restrictions on detainees which would otherwise be illegal. This seemingly paradoxical situation exemplifies the complex relationship between repressive emergency laws that were initially imposed by colonial authorities but were continued in the post-independence Constitution, often with the justification that they were necessary for safeguarding constitutional freedoms and democratic forms of government. Article 23 prohibits the traffic in human beings and other forms of forced labour while Article 24 prohibits the employment of children below the age of 14 in hazardous work. Articles 25\u201328 deal with the freedom of religion, while Articles 29\u201330 relate to cultural and educational rights. These last two sets of rights are examined more closely in Chapter 6, which deals with the models of multiculturalism and secularism in India. Article 32 stipulates that the right to move courts for the enforcement of Fundamental Rights is itself guaranteed and cannot ordinarily be suspended. A textual analysis indicates that these provisions, where they were not created to respond to indigenous concerns, were inspired in part by the Bills of Rights in the US and French Constitutions, and by the Universal Declaration of Human Rights. In their terms, however, many of the Indian rights provisions tend to be more elaborate than those that inspired them. In this, they anticipated the later trend of providing elaborate descriptions of rights provisions and the conditions under which restrictions can legitimately be imposed upon them by constitutional authorities. B. Directive Principles","Part IV of the Constitution bears the title \u2018Directive Principles of State Policy\u2019 and consists of 15 provisions (Articles 36\u201351). Tellingly, these Principles have not been further divided into sub-categories, perhaps because of the difficulty involved as they contain many different types of provisions. While the rights provisions are, in keeping with general trends elsewhere, often abstract, the Principles tend to focus both on general and very particular issues. The first provision, Article 36, states that the definition of \u2018State\u2019 applicable to Fundamental Rights will also apply to the Directive Principles, which has important implications that the courts later elaborated upon. Article 37 is significant as it first stipulates that the Principles \u2018shall not be enforceable by any court\u2019 before providing that they \u2018are nevertheless fundamental in the governance of the country\u2019. It also imposes a duty on the State \u2018to apply these principles in making laws\u2019. Later in this chapter, we shall see how courts have interpreted the seemingly contradictory motivations of this provision. Articles 38 and 39 can be seen as evidence of the claim of the English constitutional jurist Ivor Jennings that \u2018the ghosts of [the British socialists] Sidney and Beatrice Webb stalk through the pages of the [Indian constitutional] text\u2019.1 Article 38 exhorts the State to create a social order where the welfare of the people is promoted and all institutions of national life are infused with an overarching ideal of justice. Clause 2 of the provision more specifically targets inequality and urges the State to minimise income inequality and eliminate inequalities of status, facilities and opportunities. The six clauses of Article 39 focus on both general goals (\u2018the ownership and control of the material resources of the community are so distributed as to secure the common good\u2019) and more specific ones (the right to livelihood, equal pay for equal work, the health and strength of workers, the basic rights of children to be protected from exploitation). A number of provisions focus on specific aspirational goals: Article 39A, which was inserted through a constitutional amendment, exhorts the State to secure free legal aid to citizens; Articles 41, 42, 43 and 43A urge the State to achieve aspects of the right to work; Article 46 commends the adoption of policies to attend to the specific needs of Scheduled Castes and Scheduled Tribes; Article 47 enjoins the State to improve public health and raise levels of nutrition and standard of living; Article 43B seeks the promotion of co-operative societies; Article 48A recommends measures to","protect the environment, forest and wildlife of the country; Article 49 seeks the protection of monuments and places of historic and artistic interest; Article 50 urges the separation of the judiciary from the executive; and Article 51 seeks the promotion of international peace and security also through fostering respect for international law and treaty obligations. Some other Principles were initially put into the text as compromises or as gestures of appeasement but have gained importance over time through later developments. So, Article 45, which initially recommended a focus on the education of children below the age of 14, was one of the causal factors that led eventually to a fully-fledged Fundamental Right (the current Article 21A). The same constitutional amendment amended Article 45 to now urge the State to provide early child care and education for children below the age of six as they are not covered by the newly established Fundamental Right. Similarly, Article 40 urged the State to establish village panchayats (the traditional form of governance in Indian villages) and was placed in the Principles to appease the Gandhians in the Assembly. Four-and-a-half decades after independence, the Constitution was amended, as we saw in Chapter 3, to introduce a third tier of governance institutions at the village and municipal levels. Article 48, which somewhat incongruously urges the State to focus on animal husbandry and to prevent cow slaughter, was originally inserted to appease Constituent Assembly members of a Hindu nationalist persuasion who had a specific commitment to cow protection. With the election of successive BJP governments in several State legislatures and the Union legislature in 2014 this provision became the inspiration for several laws aimed at banning cow slaughter across the nation. As we shall see, the judiciary too has invoked the Principles to give them meaning and a fuller existence than the language of Article 37 would have suggested was possible. The Directive Principles were originally inspired by the much smaller catalogue in the 1937 Constitution of the Irish Republic, but as with the rights provisions, became more extensive and more reflective of indigenous concerns by the time they were finalised. Although thought to be irrelevant, even by some of the framers, they have acquired a meaningful existence in their own right. Having focused on what is included in the Rights and Principles, a few words about what was not included. A surprising omission from the chapter on Fundamental Rights is the category of citizenship rights, which were","matters of deep concern in the aftermath of Partition. Provisions dealing with citizenship are in fact included in the Constitution, and appear in Part II, before the Fundamental Rights in Part III. However, the six provisions that deal with citizenship (Articles 5\u201311) are quite narrow in scope and have not been able to anticipate the many issues of citizenship that have arisen in later years. The fact that citizenship is not recognised as a Fundamental Right also has implications for the manner in which citizenship rights are pursued and taken account of by the State. A similar problem exists in relation to the right to vote, which, like the right to citizenship, is a constitutional right (recognised, as we will see in Chapter 6, in Article 326), but is not a Fundamental Right. Then there is the case of the right to privacy, which is not mentioned in the text at all, a surprising omission given the extensive use of surveillance and search and seizure measures by the colonial state. All this is to note that the vision of the framers of the Indian Constitution, while salutary in many respects, was not close to perfection as is sometimes asserted by over-enthusiastic votaries of the Indian Constitution. C. The Judiciary Although the Indian Constitution envisages a federal system of government generally, it created a unitary judiciary with three levels of courts, all of which work under the aegis of a powerful Supreme Court at the apex of the system. The rationale behind the provisions will be examined in the next section, but to understand the content and level of detail that follows in this section, it is worth noting Ambedkar\u2019s overall conception of the judiciary: \u2018one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitutional law, the civil law or the criminal law\u2019.2 This, according to Ambedkar, was \u2018essential to maintain the unity of the country\u2019.3 Once again, the temporal concerns of the period surrounding the framing of the Constitution vitally affected the way the role and function of crucial institutions of government would be conceived by the makers of the Indian Constitution. Chapter IV of Part V of the Constitution is entitled \u2018the Union Judiciary\u2019 and consists of 23 provisions (Articles 124\u2013147). Another 23 provisions relating to the High Courts and the subordinate courts are set out","in Chapters V (consisting of Articles 214\u2013232) and VI (consisting of Articles 233\u2013237) under Part VI of the Constitution, which deals with \u2018The States\u2019. The provisions on the Union judiciary deal with the following issues: the establishment of the Supreme Court, including the location of its seat in New Delhi (Articles 124, 130); its powers and jurisdiction in relation to its functioning (Articles 129, 131\u2013144); the salaries and perquisites of judges of the Supreme Court (Article 125); the age, qualifications and process of appointment and removal of Supreme Court judges (Articles 124, 126\u2013128) and the vesting of unique powers in the Supreme Court to make rules for its own operation and to appoint its own staff and officers (Articles 145\u2013146). A focus on the Supreme Court of India is important also because it is at the apex of the integrated judiciary in India. It is important to emphasise that the Indian Supreme Court performs several roles: (i) that of a constitutional court (which in the Indian context involves cases where federalism disputes arise between the States and the Union under Article 131, constitutional cases where Fundamental Rights violations are alleged under Article 13(1) read with Article 32, or laws are challenged for lack of legislative competence under Articles 245 and 246, or cases under Article 132 where a High Court certifies that a case involves \u2018a substantial question of law as to the interpretation of the Constitution\u2019); (ii) that of a court of final appeal in a range of constitutional, civil and criminal cases (this is a jurisdiction created by Articles 132\u2013135 and provides an appeal by right in criminal cases involving capital punishment, imprisonment for life or for more than 10 years); (iii) that of a court which can accept appeals by \u2018special leave\u2019 (a jurisdiction created by Article 136, which enables the Supreme Court, rather extravagantly, to grant appeals from \u2018any judgment, decree, determination, sentence or order in any cause or matter\u2019 issued by \u2018any court or tribunal\u2019 within India); (iv) and that of a court which has inherent powers that allow it to do \u2018complete justice\u2019 and to review its own judgments (this jurisdiction flows from Articles 137 and 142 of the Constitution).","This scheme clearly establishes that the Supreme Court of India has extensive powers and jurisdiction, giving credence to the claim of one of the framers of the Constitution that \u2018it has wider jurisdiction than any superior court in any part of the world\u2019.4 This was certainly true in 1950, and remains true even today. As we will see in the next section, not all the framers believed this to be sensible; some warned that this would lead to a \u2018flood\u2019 of cases before the Supreme Court.5 An empirical study conducted in 2011 showed that of the total workload of the Supreme Court, 84.6 per cent were special leave appeals under Article 136, and 3.1 per cent were other kinds of appeals. This means that less than 3 per cent of the cases heard by the Supreme Court in recent years have been constitutional cases, properly so called.6 This aspect of the type and number of cases being adjudicated by the Supreme Court and the Indian judiciary as a whole will be the focus of Section V of this chapter. The Indian Supreme Court currently has 31 judges, who sit in benches of two and three, resulting in a situation where on a single day, the Court may have 12\u201313 parallel benches sitting and hearing cases simultaneously. This is clearly quite different from an apex court which consists of judges sitting en banc. The Indian situation results in quite a complex situation with severe coordination problems, manifested in multiple judgments of two\u2013three-judge benches which conflict with each other, requiring larger benches of the Court to resolve such contradictions. This also makes it difficult for the Supreme Court to have a coherent jurisprudence which is clearly set out and articulated over time. This is to be borne in mind as we seek to find coherence in the decisional output of a system that seems designed to create ambiguity, instability and incoherence.7 The provisions relating to the High Courts follow a similar pattern to that of the Supreme Court. Article 214 states that there shall be a High Court for each State, but Article 231 specifies that two or more States may share a High Court (which is the case at present with 29 States having to share the 24 existing High Courts). Article 226 empowers the High Courts to issue writs to enforce the rights guaranteed under Part III of the Constitution. This is an important power which clarifies that though the High Courts are subordinate to the Supreme Court in hierarchy, they are independently equipped to act as guardians of the Fundamental Rights. Article 227 clearly establishes that a High Court will have powers of superintendence over \u2018all courts and tribunals\u2019 within its territorial","jurisdiction. The provision further clarifies that this includes the power to make rules for the practice and procedure of these courts. Article 229 provides that High Courts will have powers to appoint their own staff as well as to make rules for their own functioning. The provisions relating to the subordinate judiciary under Chapter VI of Part VI of the Constitution make clear that the High Courts have the power to be consulted in the appointment of district judges (Article 233) and that control over the subordinate courts will vest in the High Courts (Article 235). These sets of provisions stipulate a clear hierarchy between and among the three levels of the judiciary and also enable the judiciary to have control over appointments to its own staff and rule-making authority, thereby granting a high degree of functional autonomy to the courts. Another set of provisions seeks to further entrench the independence of the judiciary from other wings of government. These include the provisions which lay down the salaries and service conditions of judges of the Supreme and High Courts in the text of the Constitution, in order to immunise them from easy amendment (Articles 125 and 221). Similarly, the procedure for appointments to both the High Courts and the Supreme Court is designed in a way to ensure that the inputs of the respective Chief Justices is taken into account. Although they are formally made by the President, appointments to the Supreme Court were to be made after consulting the Chief Justice of India and to the High Courts after consulting the Chief Justice of the respective High Court. As we will see, this issue became much more prominent in the years after independence, and especially in the years since the early 1990s. The mechanism developed by the framers for appointment of judges sought to involve the judiciary in the process but it seems clear that their intention was to give primary authority in respect of this important task to the executive wing of government at the Central and State levels. Superior court judges in India can be removed only after an address in Parliament and after a supermajority of the voting members in Parliament approve (Articles 124 and 218). This is, both in theory and practice, a high requirement. Not surprisingly, despite attempts that were initiated against some individuals, no superior court judge has been successfully impeached in independent India to date. The final strategy of the framers to make the judiciary truly independent was to impart to the provisions regulating the higher judiciary a superior","status for purposes of constitutional amendment. Clause (2) of Article 368 lists a handful of provisions, including those relating to the judiciary, with the requirement that in order to successfully amend them, the amendment proposal must not only pass successfully in Parliament, but must also be endorsed by at least half of the State legislatures. By these sophisticated and intertwining methods, the framers of the Indian Constitution successfully devised ways of ensuring that the judiciary has a degree of independence that cannot easily be tampered with. III. THE CONSTITUTIONAL HISTORY OF PROVISIONS RELATING TO FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES AND THE JUDICIARY A. The Separation of Fundamental Rights and Directive Principles It is worth noting that the colonial government, in tune with British political thought about rights more generally even within Britain, remained reluctant to bestow rights upon Indians. One scholar has recently characterised the approach of British colonial authorities to demands for rights provisions raised in the various colonies in the following terms: [A] bill of rights was ineffective at protecting rights, it limited the actions of the colonial administration, it hamstrung Parliament, it invited litigation, it required skilled judges to interpret, it politicized the judiciary, it was almost impossible to draft effectively, and perhaps most importantly, it was not the British way to protect rights.8 This attitude helps explain why the colonial authorities steadfastly rejected appeals by the Indian nationalist movement for a Bill of Rights from the time they were first made in 1895, all the way up to the grant of independence.9 For our purposes, it is significant that there was a shift in the thinking of the nationalist movement about the nature of rights over time. It is certainly striking that the distinction between Fundamental Rights and Directive Principles was made, for the first time, in the deliberations within the Constituent Assembly. In the half-century-long history of the evolution-of- rights documents crafted by the nationalist movement, as we saw in Chapter 1, there was an equal emphasis on the civil and political rights as well as the socio-economic rights that owed their origin respectively to the liberal and","socialist wings of the Indian National Congress. During the drafting process in the Assembly, however, the lawyers BN Rau and Alladi Krishnaswami Aiyar argued that many of the social and economic rights or positive rights were not amenable to judicial review in the same way as were the classic civil and political rights. Since some members had already objected to the presence of mere \u2018moral precepts\u2019 in the text of the Constitution, the suggestion was that making the socio-economic rights non-justiciable would justify their presence in a separate section of the Constitution.10 Other members such as the Gandhians in the Assembly and the powerful troika of KM Munshi, KT Shah and Ambedkar strongly urged for the inclusion of strong socio-economic rights as Fundamental Rights. They were opposed to such rights being housed in a separate section, which they noted would undermine the importance of socio-economic rights. Eventually, however, the view of Rau and Aiyar prevailed, and Ambedkar himself defended the decision to separate the justiciable Fundamental Rights from the non-justiciable Directive Principles.11 B. The Judiciary As should be clear from a perusal of the length and detail of the bare provisions relating to the judiciary, the framers of the Constitution spent considerable time and effort in crafting them. However, unlike in the case of the rights provisions, they were not working from a blank canvas in terms of existing arrangements. The period of British presence in India had witnessed the establishment of an elaborate system of courts from the time of the East India Company. So, for instance, the Mayor\u2019s Court was established outside Bombay in 1728. While the Company administered India, there were two sets of courts: one administered by the British Crown, and another by the East India Company.12 In 1861, after the formal end of Company rule in India, the British Parliament enacted the Indian High Courts Act, which authorised the Crown to set up High Courts of Judicature in the \u2018Presidency towns\u2019 of Calcutta, Madras and Bombay. By the time independence was achieved, this system of courts had been in place for nearly a century. This situation presents a paradox which needs some explication. The nationalist movement often used the oppressive measures brought about by","colonial laws to make its case for, initially, the need for reform in the colonial structures of power, and eventually, the need to reject colonial rule altogether. The sedition trials that the British initiated against important nationalist leaders across nearly 30 years (Jogendra Chandra Bose in 1891, Bal Gangadhar Tilak in 1897, Annie Besant in 1917, Maulana Azad and Mohandas Gandhi in 1922) helped mould public opinion in favour of the growing nationalist movement by creating a perception that colonial rule, law and courts were deeply unfair in their application to Indians. However, this impression did not extend to all legal and judicial institutions uniformly. As scholars have argued, while some of the lower courts did become instruments of colonial policy in very clear ways, this tendency did not extend to superior courts in general. Further, the High Courts in particular had begun a process of indigenisation well before independence, so that by the time of independence, the prominent High Courts in particular were considered more Indian than British.13 All this goes to explain why the framers of the Indian Constitution did not seem eager to completely supplant the colonial structure of courts and decided instead to continue many parts of that legal order, albeit with important adaptations and modifications, which we will focus upon in the remaining part of this section. By the 1920s, the High Courts had become established in several parts of India. Appeals from the High Courts lay to the Judicial Committee of the Privy Council in London, which was a time- and money-consuming effort and was an avenue open to very few Indians. By the 1930s the colonial government had also established the Federal Court of India by the Government of India Act 1935. This became necessary because that law also introduced a federal element into the colonial Indian legal order for the first time, and the Federal Court was thought to be necessary to resolve disputes between the federal units. Notably, however, the Federal Court had a limited original jurisdiction and its decisions were still subject to appeal before the Privy Council, factors that inhibited its evolution into a robust judicial forum. Within the Constituent Assembly, deliberations on the judiciary began with some common agreement. The colonial system of courts would be retained but important changes would be made. Appeals to the Privy Council would be abolished\u2014a decision that was unusual as many other former British colonies retained such appeals for long after formal","independence\u2014and a new Supreme Court would be established. Although this new institution would retain the role of the Federal Court in being an arbiter of federalism disputes, its main purpose would be to safeguard the new Bill of Rights that would be introduced in Part III of the Constitution. The new Supreme Court was also to have a much wider jurisdiction than the Federal Court in other matters, including, as we saw in Section II, in the range of appeals and original cases it would take on. The framers gave this new institution a wider range of powers because of their belief that the unity that the country needed in perilous times could not be achieved exclusively by the strong Union government that they would establish. For KM Munshi, \u2018the unconscious process of consolidation which a uniformity of laws and interpretation involves makes the unifying unconscious and more stable\u2019.14 BR Ambedkar similarly felt that an integrated judicial system coupled with the uniformity of law were \u2018essential to maintain the unity of the country\u2019.15 As noted earlier, the framers invoked multiple strategies to ensure that the judges of the superior courts would be independent. However, in light of the expansive role undertaken by the judiciary in later years, to which we will turn in the succeeding section of this chapter, it is important to emphasise what kind of role the framers had in mind for the judiciary. One of the great champions of judicial autonomy and independence in the Assembly was Alladi Krishnaswamy Aiyar. On this question, he had a precise explanation: While there can be no two opinions on the need for the maintenance of judicial independence, both for the safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle. The doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super- Legislature or super-Executive. The Judiciary is there to interpret the Constitution or adjudicate upon the rights between the parties concerned. \u2026 the Judiciary as much as the [Legislature] and the Executive, is depending for its proper functioning upon the cooperation of the other two.16 [emphasis added] It is important to place this statement in context. While the framers of the Constitution were keen to have an independent judicial institution that would safeguard rights and be an important check on the abuse of power, they were equally clear that the main engine of activity in the constitutional scheme was the executive government acting with the support of an active and vigilant Parliament. It appears that their vision sought to combine in hybrid form the parliamentary sovereignty of the British type with judicial","review of the US type. In such a vision the judiciary was to have strong powers and a defined role but was nevertheless still to play a subordinate role to Parliament and the government of the day, which enjoyed a majority in Parliament. This is certainly how the role of the judiciary was envisaged by Prime Minister Nehru, who was an ardent champion of judicial review and independence but also believed that it was Parliament and the government of the day which would have the final say on policy decisions. Interestingly enough, this was also the position of the early judges of the Supreme Court, all of whom had been members of its predecessor, the Federal Court, and had been steeped in the values of the British judiciary, which did not have any powers to strike down Parliamentary law and viewed the law in \u2018technocratic\u2019 rather than \u2018political\u2019 terms.17 As we will see in the next section, the situation in post-independence India evolved very differently from the framers\u2019 vision for judiciary\u2013 executive relations. IV. THE SUPREME COURT AND ITS ROLE AS GUARDIAN OF THE RIGHTS PROVISIONS (1950\u20132016) It is important to emphasise that the High Courts in India have, both in theory and in practice, played an important role in advancing rights jurisprudence in India. However, space constraints preclude a close examination of their record here. The descriptive survey of the work of the Supreme Court provided here is both summary and reductive since the volume of case law that has been generated across this period is enormous and complex. The survey is also thin on doctrinal detail because there is now a well-developed body of academic work which can provide a reader with access to such analysis.18 This section seeks to provide an overview of the process by which the Supreme Court of India evolved from being a cautious new institution in 1950 to the point by the early part of the 21st century when it was perceived by many political commentators as the most powerful political actor in the Indian constitutional landscape. Although this is a narrative that has been detailed by many scholars,19 only the broad sketches of that transformation can be outlined here. In identifying the major phases of the working of the Supreme Court, I broadly follow the trajectory and phases employed in Chapter 2 to describe the evolution of the political landscape in India.","A. Phase I: The Supreme Court as Loyal Opposition During the Nehru Era: Establishing Judicial Review and the \u2018Technocratic\u2019 Phase of the Supreme Court (1950\u201366) On 28 January 1950, two days after the Constitution was formally adopted, the Supreme Court of India was officially inaugurated. Its first judges were the six Indian judges who had been part of the Federal Court of India with Chief Justice Harilal J Kania becoming the first Chief Justice of the Supreme Court. It is important to recall the political context of the time. Prime Minister Nehru headed a Cabinet composed of many stalwarts of the nationalist movement, which also consisted of leaders from beyond the ranks of the Indian National Congress: Dr Ambedkar was at the time the Minister for Law and Shyama Prasad Mookherjee was the Minister for Industries. The first Cabinet represented a \u2018national\u2019 government that extended beyond the Congress and was an indication of the early fervour displayed by Indians, in the first flush of independence, to put nation ahead of partisan political affiliation. Within two years, Prime Minister Nehru had led the Congress party to a major victory in the first General Elections, garnering well over a two-thirds majority in the Lok Sabha. The opposition parties were splintered and were quite ineffectual both in and outside Parliament. In keeping with the image of the Federal Court, which had had a relatively quiet and modest existence,20 it was perhaps expected that the Supreme Court would be an important institution but would align with the nationalist mission outlined in the Constitution. In some ways, this is what the Court did. However, what is significant is that on a range of issues, from its very inception, the Supreme Court was also willing to stand up to the Nehru Government where the text of the Constitution seemed to favour a litigant challenging government action. Since there was virtually no other actor which was in a position to do so, it is helpful to think of the Supreme Court as performing the role of a loyal but weak opposition during this first crucial phase of the new Republic. The claim is not that the judges of the Supreme Court intended to act as a loyal opposition, but that their actions can be viewed from that standpoint with the benefit of hindsight and a full awareness of their context. This assessment is informed by the judgments delivered by the Supreme Court in a range of early decisions. In its very first decision, AK Gopalan v","State of Madras,21 the Supreme Court had to confront a challenge to a parliamentary law that authorised preventive detention. The petitioner, a communist politician, who had been detained under an existing law, argued that the law violated his rights under Articles 19 and 21 of the Constitution. Although the Court by a majority of five to one upheld the constitutionality of the law as a whole, it emphasised that it had the power of judicial review over legislative action and held one provision of the law to be ultra vires the Constitution, striking it down for violating Article 22(5) of the Constitution. While one can see this decision as validating the action of the government of the day and upholding the parliamentary law in question, the decision of the majority also gave hope to vigilant citizens because, in its very first decision, the Supreme Court had shown that it would not hesitate to strike down a portion of a parliamentary statute. This approach of the Court was more evident in its free speech decisions\u2014Brij Bhushan (1950),22 Romesh Thapar (1950)23 and Shailabala Devi (1952)24\u2014where the Supreme Court struck down efforts at curbing free speech in the context of pre-censorship. Similarly, in the VG Row case (1952),25 the Supreme Court did not hesitate to strike down an amendment to a criminal law passed by the Madras legislature for unreasonably transgressing the right to association conferred on citizens by Article 19(1)(c) of the Constitution. Although the striking down of a legislative instrument now seems routine, it has to be remembered that this was extremely unusual for a judicial system which had existed for over a century in India and had perceived itself as a loyal ally of the regime. In the initial years, the Indian Supreme Court exercised this power quite liberally. Going beyond the freedoms guaranteed by Article 19, the Supreme Court questioned affirmative action policies when it struck down a provision for community-specific seats in the early case of State of Madras v Champakam Dorairajan (1951).26 These might not, by themselves, have aggravated matters, but the Nehru government became concerned when the Patna High Court struck down a Bihar land reform enactment in the Kameshwar Singh case (1951).27 Land reforms had been one of the primary policies of the Nehru government and it moved quickly and effectively to amend the Constitution through the First Amendment to the Constitution. The First Amendment sought to address all the issues listed above\u2014it increased the restrictions which could be imposed on free speech to circumvent the reasoning employed by the courts; and it expressly permitted admission of backward","classes of citizens into educational institutions to overcome the Champakam Dorairajan ruling\u2019s effect. Most significantly, the First Amendment introduced Articles 31A, 31B and the Ninth Schedule to immunise land reform measures from constitutional scrutiny by the judiciary. This had the effect of temporarily freezing a festering dispute over the right to property between the Parliament and the judiciary. This is a debate which raged for a considerable period and is of crucial significance in understanding both the nature of Indian constitutionalism and the relations between its Parliament and judiciary over the first quarter-century of its existence. However, this issue is better addressed in Chapter 7, while focusing more squarely on the subject of constitutional amendment where the right to property features in a major way. Reverting to our narrative, the successful passing of the First Amendment had the desired effect on the judiciary. Prime Minister Nehru\u2019s standing in the country and within government ensured that the judiciary would not take on his government by stretching the language of the Constitution. This was helped also by his own statesman-like conduct in relation to differences with the judiciary. Moreover, the judges of the Supreme Court accepted, as noted earlier, the superior representative capacity of Parliament and yielded to the logic that Parliament had the final say on a question that had been decided through a constitutional amendment, even if this was done expressly to overrule a judicial verdict. From then on until Nehru\u2019s death in 1964, the judiciary maintained a respect for the powers and authority of Parliament in matters relating to the Constitution, often by adhering to the text of the Constitution. B. Phase II: The Post-Nehru Years Until the Emergency: The \u2018Teleological\u2019 Phase of the Supreme Court (1966\u201377) In this phase Indian democracy experienced the after-effects of the passing of a giant in Indian politics. The Prime Ministers who succeeded Nehru\u2014 Shastri and Indira Gandhi\u2014struggled to establish their presence over their party colleagues and were unable to obtain the same level of authority to push policies through. Equally, other constitutional actors felt less inhibited in challenging their decisions and asking fundamental questions about their policies. This was true of the judiciary as well, which was already","accustomed to this role. However, in this phase, the judiciary showed itself willing to go beyond the text of the Constitution, to raise more profound questions relating to the very purpose of government and the Constitution. The trend of raising questions did not last all the way through to the end of this phase as the Court seemed to buckle under the consequences of having raised such questions consistently for nearly a decade. As will be examined more closely in Chapter 7, the power of Parliament to amend the Constitution to advance its socio-economic policies had been a source of tension between the judiciary and the other two wings of government since the early days of the Republic. During Prime Minister Nehru\u2019s tenure, these tensions were resolved through the route of successive constitutional amendments to various provisions of the Constitution, including the Fundamental Rights chapter, which came to be accepted by the Supreme Court. However, soon after Nehru\u2019s death and following Prime Minister Lal Bahadur Shastri\u2019s untimely passing in 1965, Indira Gandhi\u2019s ascent to the office of Prime Minister created political uncertainty given her own precarious position within the Congress party. The old certitudes became shaky and this was reflected also in the approach of the Supreme Court in a series of cases decided in fairly quick succession. In the case of Golakh Nath v State of Punjab (1967),28 which involved a challenge to the First, Fourth and Seventeenth Amendments for foreclosing judicial review of the right to property, an 11-judge bench of the Supreme Court held that Parliament did not have the power to pass any amendment which had the effect of taking away any of the Fundamental Rights guaranteed by Part III of the Constitution. Chief Justice Subba Rao\u2019s majority judgment went beyond the text of the Constitution and asked what the broader purposes of a written Constitution might be in reaching its conclusion that some aspects of the Constitution may be beyond the amendment power of Parliament. Chief Justice Subba Rao appeared to be motivated by \u2018the argument from fear\u2019 which stemmed from a perception that Prime Minister Gandhi would be far less principled in her approach to policy making while being sensitive to constitutional values and Fundamental Rights, especially when compared to Nehru. Things were not helped by the fact that shortly after this judgment, Chief Justice Subba Rao resigned from the Court and was a candidate for the Presidential elections where he garnered support from parties who were seen as aligned with landowners and supporters of the right to property.","As Prime Minister Indira Gandhi struggled to increase her base of support in a bid to defeat the old guard of the Congress party, which was trying to undermine her authority, the Supreme Court continued to flex its muscles and struck down two other important policies of her government. In the case of R.C. Cooper v Union of India (1970)29 the Supreme Court held that Prime Minister Gandhi\u2019s much-heralded policy of bank nationalisation was unconstitutional as the amount of compensation paid to those whose banks were taken over by the government was illusory. Then, soon afterwards, in the case of Madhavrao Scindia v Union of India (1971),30 the Supreme Court heard a challenge to a Presidential order which discontinued the practice of disbursing privy purses to members of the families of the rulers of the Princely States who had agreed to join the Indian Union at the time of independence on this basis. In upholding the legal and constitutional rights of the members of the erstwhile royal families, the Supreme Court again undermined the authority of Prime Minister Gandhi\u2019s government. In the process, however, the Supreme Court ended up being projected as a champion of the rights of landowners, rich owners of private banks and members of the families of the once fabulously wealthy princely rulers. Prime Minister Gandhi campaigned aggressively against the judiciary in the General Elections held in 1971. Her campaign asserted that she was seeking to advance socialist goals but was thwarted by her opponents, which included the judiciary, that had struck down important planks of her platform. Upon winning a comprehensive majority in Parliament, Prime Minister Gandhi unleashed a range of constitutional amendments designed to expressly reverse specific judgments of the Supreme Court. Some of these amendments were the subject of challenge in the landmark case of Kesavananda Bharathi v State of Kerala (1973),31 which was decided by a 13-judge bench by a narrow majority of 7:6. The judges in the majority sought to achieve a fine balancing act. They reversed the decision in Golak Nath and held that Parliament did have wide powers of constitutional amendment which would extend to every part of the Constitution, including Part III and the Fundamental Rights. They also upheld the constitutional amendments passed by the Indira Gandhi Government but imposed a check on the amending power by holding that Parliament\u2019s power of amendment would not extend to the \u2018basic features\u2019 or the \u2018basic structure\u2019 of the Constitution. Although the majority judges","gave some illustrative examples of what would amount to the \u2018basic structure\u2019, it was evident even from a bare reading of the judgment that the concept was ambiguous and this ambiguity would, over time, be something to the advantage of the judiciary, which could potentially use it to augment its own power. Once again, this judgment witnessed the Court moving away from the text of the Constitution to arguments from philosophical foundations and first principles as to the purpose of vesting amending powers in Constitutions that were designed to endure through the ages. The long-term impact of the judgment was monumental. Once the Supreme Court reserved to itself the power to decide which constitutional amendments enacted by Parliament would pass muster, its power in relation to lesser matters would be far greater. In the short term, however, the judgment of the majority, despite its attempt to be more sensitive than the Golakh Nath judgment to the balance of power between Parliament and the judiciary in respect of the power of constitutional amendment, was perceived as a slight by the Indira Gandhi Government. Within a day of the pronouncement of the judgment in Kesavananda, the President issued an order appointing AN Ray (who had joined the minority judges in supporting the stance of the Indira Gandhi Government) as the next Chief Justice of India, superseding the three judges who had been in the majority in Kesavananda and had been in line to be Chief Justice ahead of AN Ray. The decision created shockwaves in the country and within the legal profession in particular, which viewed the decision as a blow, not only to the independence of the judiciary, but also to democratic constitutionalism in India. Although this action seemed to restrain the judges of the Supreme Court, Prime Minister Gandhi\u2019s troubles with the superior judiciary as a whole continued. On 12 June 1975 Justice Jagmohan Lal Sinha of the Allahabad High Court delivered judgment in State of Uttar Pradesh v Raj Narain (1975),32 which had commenced in 1971 when Raj Narain had alleged that Prime Minister Gandhi\u2019s election from the Rae Bareilly constituency in Uttar Pradesh should be set aside for the commission of a \u2018corrupt practice\u2019 as she had used State resources for her personal campaign, an electoral offence under the applicable law. Justice Sinha\u2019s judgment found the Prime Minister guilty of the offence, which had the consequence of putting into doubt her position as Prime Minister. Within a fortnight of the judgment, after the Supreme Court in an intriguing order","issued by Justice Krishna Iyer granted her an interim stay on the judgment, Prime Minister Gandhi advised President Fakhruddin Ali Ahmed to issue a Proclamation of Emergency. The Emergency officially lasted from 25 June 1975 to 21 March 1977 and was, as noted earlier, a cataclysmic event in India\u2019s political and constitutional history. Its imposition weakened several institutions in India, some of which have yet to recover fully. The immediate effect on the Supreme Court was palpable and caused a shift in the trends towards constitutional adjudication it had exhibited over the last decade. The most drastic evidence of this shift was to be found in the Supreme Court\u2019s judgment in the case of ADM Jabalpur v Shivkant Shukla (1976).33 The case involved a challenge to a repressive preventive detention law (the Maintenance of Internal Security Act 1971) under whose aegis several hundred thousand political opponents of the regime had been detained during the Emergency. The petitioners had also challenged the Proclamation of Emergency as well as a Presidential Order of 27 June 1975 which suspended the right to move the courts for the protection of rights guaranteed under Articles 14, 21 and 22. The judgment of the Supreme Court, by a majority of 4:1, upheld the government\u2019s claims in their entirety. The Court held that during the period of Emergency all governmental actions were immune from judicial scrutiny. To hold so, they had to also find that the rights to life and personal liberty were gifts by the State to citizens, which could therefore be simply revoked in times of Emergency. In his stirring dissent, Justice Khanna held that the imperatives of the rule of law demanded that the rights to life and personal liberty could not be suspended even during an Emergency, and that the legality of a detention was open to question. For his courage, Justice Khanna was rewarded by being passed over for becoming Chief Justice, a position that the Gandhi Government awarded to Justice Beg, who had delivered the most cloying judgment in favour of the government\u2019s position in the ADM Jabalpur case. With this, the capitulation of the judiciary to the will of an authoritarian regime seemed complete. The Supreme Court\u2019s judgment in ADM Jabalpur is universally regarded as its lowest point and was a return to a formalistic worship of the text, while being oblivious to the foundational, philosophical premises that underlay the text.","C. Phase III: The Court\u2019s Turn to Populism: The Flowering of Public Interest Litigation and the Turn to the Directive Principles (1977\u201389) After the Janata Government came to power in 1977, its major policy decisions, including the passing of the 44th amendment to undo the damage inflicted by the 42nd amendment, did much to restore the power of the Supreme Court. For its part, the Supreme Court seemed eager to retrieve its credibility by delivering important judgments such as the one in Maneka Gandhi v Union of India (1978),34 where it strove to bolster its civil libertarian credentials by overruling the Gopalan case (which was by then perceived as a rigidly conservative decision) and giving to Article 21 an expansive interpretation which would also lay the foundation for further capacious interpretation in later cases. At the same time, the Court started developing its jurisdiction in Public Interest Litigation (PIL) cases, where it sought to address issues relating to the poor and marginalised sections of Indian society. The seeds for this jurisdiction had been laid in some cases in the early 1970s35 but the most significant cases that led to the frenetic use of PIL in the 1990s were decided in the aftermath of the Emergency.36 The constitutional scholar Upendra Baxi has argued that the Court\u2019s activism on behalf of the poor and the marginalised in the aftermath of the Emergency was an attempt to \u2018bury its emergency past\u2019.37 Following the return of Prime Minister Indira Gandhi\u2019s government in 1980, some judges of the Supreme Court continued to pursue PIL cases knowing that, given her public commitment to eradicating poverty, she would find it hard to adopt the kind of aggressive policies against the judiciary that she had undertaken in the past. This phase saw some of the most progressive decisions of the Court, especially on socio-economic rights issues, many of which were housed in the Directive Principles. The Indian Supreme Court initially adopted the approach that the words in Article 37 that rendered the Directive Principles unenforceable were to be interpreted to mean that they were inferior in constitutional status to Fundamental Rights. The constitutional scholar PK Tripathi wrote a withering critique of this position in 1954 but it was not until the decision in Minerva Mills v Union of India (1980)38 that the Supreme Court acknowledged that both Directive Principles and Fundamental Rights were","of equal status in the Indian constitutional scheme, and are to be harmoniously construed. Until this issue was resolved, Indian courts could not actively seek to implement the Directive Principles. After the pronouncement in the Minerva Mills case, the Indian judiciary felt more confident in addressing social rights issues and tackled a raft of such cases across the 1980s. It then proceeded to decide a range of important cases relating to the rights to livelihood and housing (Olga Tellis v Bombay Municipal Corporation (1985)39 and Ahmedabad Municipal Corporation v Nawab Khan (1997)),40 education (Mohini Jain v State of Karnataka ((1992)41 and Unni Krishnan v State of Bihar ((1993)42) and health (Consumer Education and Research Centre v Union of India (1995)43 and Paschim Banga Khet Samity v State of West Bengal (1996)44). In all these cases, the Court expressly cited and relied upon the relevant Directive Principle to bolster its expansive reading of Article 21 to include the particular social right. D. Phase IV: The Rise of the \u2018Good Governance\u2019 Court in the Era of Coalition Politics, and the Age of Judicial Supremacy (1989\u2013 2014) As the Indian political space entered the era of coalitional politics, the next quarter-century witnessed a period of political instability, with several short-lived governments at the Centre. Even when governments lasted their full term, they were either dependent on \u2018outside support\u2019 of other parties, or were composed of multi-party coalitions which impeded quick and firm policy making. All this resulted in a set of circumstances where, in the face of weak governments that were slow to act since they lacked political will, the authority of the judiciary grew by leaps and bounds, to the point where the Court became a much more prominent institution of policy making and agenda setting than the framers of the Constitution could have anticipated. This period also coincided with the introduction of policies of economic liberalisation to which the Court, over time, lent its support and actively aided.45 This eventually led to contradictions between the image of the populist, pro-poor court it had pursued in the 1980s and was also the subject of bitter critique by social activists and progressive scholars, who dubbed it a \u2018middle class\u2019 court.46 Some scholars ascribed the label of a \u2018good","governance\u2019 court to describe the various interventions undertaken by the Supreme Court on matters relating to public policy and governance.47 To illustrate briefly what these changes entailed, we may refer to a comprehensive survey of PIL cases that were decided during the period 1997\u201398. In the conclusion of the survey, S Muralidhar presciently observed: \u2018The cases that were taken up for detailed consideration by the courts reflected a perceptible shift to issues concerning governance\u2019.48 This was the period during which the Supreme Court became proactive in its efforts towards: (1) cleaning up the political process by focusing on corruption at the highest levels of the political set-up in the Hawala and the Fodder Scam cases; (2) solving the chaotic traffic and pollution in Delhi; (3) cleaning up the Taj and its surrounding area; (4) regulating the disposal of hazardous waste; (5) regulating the manufacture and sale of pesticides; (6) addressing the issues of sexual harassment and female foeticide; and (7) regulating the collection and distribution of blood by blood banks.49 Even as the Supreme Court\u2019s focus shifted from rights of the marginalised to the rights of the middle class in the 2000s, the other two wings of government began to focus more squarely on the social and economic rights of the marginalised sections, in part because of pressure from civil society activists. This resulted in a spate of welfare laws\u2014the Right to Information Act 2005, the National Rural Employment Guarantee Act 2005, the Right to Free and Compulsory Education Act 2009 and the Right to Food Security Act 2013. Some scholars have argued that these laws can be traced back to the activism of the Supreme Court in earlier eras and some significant decisions,50 while others have noted that these laws, though much needed, fall significantly short of fulfilling the requirements of universal welfare services, or even the actual needs of the poor and marginalised sections of India\u2019s population.51 While subject to some debate, the general view of commentators has been that the Supreme Court became less focused on the rights of the weakest sections of Indian society during this period. To showcase the interpretive audaciousness that was a typical feature of the Court\u2019s modus operandi during this time, one could pick a range of issues and cases. I focus on a crucial issue that was also integral to the Court\u2019s institutional strength: safeguarding its own independence.52 Apart from expanding its authority and jurisdiction many times over, the Supreme Court displayed an anxiety about controlling appointments to its ranks in a","series of cases which began in the late 1970s, but whose outcome was radically transformed by the greater power enjoyed by the judiciary in the 1990s. As noted earlier, the framers were deeply concerned with ensuring the independence of the judiciary and sought to achieve this objective by ensuring that a number of different constitutional actors would have a say in the appointments process. This is reflected in the language of Articles 124 and 217, which deal with appointments to the Supreme Court and High Courts respectively. Article 124 stipulates that appointments to the Supreme Court are to be made by the President (who is to act on this issue on the basis of the aid and advice offered by the Cabinet) \u2018after consultation with such of the Judges of the Supreme Court and of the High Courts in the states as the President may deem fit for this purpose\u2019. In the case of the High Courts, Article 217 requires the President to also consult the Governor of the State and the Chief Justice of the High Court. The language of these provisions has been the subject of conflicting interpretations in a series of cases decided across four decades. It is important to bear the background context in mind when appreciating these cases. The two rounds of judicial supersessions deployed by the Indira Gandhi Government in the 1970s were seen as extremely damaging to the spirit of independence of the judiciary. The Gandhi Government also sought to transfer High Court judges who did not take positions amenable to it. During the short life of the Janata Government, efforts were taken to restore both the credibility and independence of the judiciary. However, the disturbing practice of injecting political appointees into the superior courts was exacerbated during the 1980s after the return to power of Prime Minister Gandhi. The first case that considered the meaning of these provisions was that of Union of India v Sankalchand Seth (1977).53 In its judgment, the Supreme Court, while interpreting the word \u2018consult\u2019, held that it imposed a requirement on the executive to consult the Chief Justice of India and the view of the chief judge should normally be accepted. A few years later in the case of S.P. Gupta v Union of India (1981),54 the judgments of the Court appeared to dilute this requirement when they held that \u2018the Chief Justice of India, the Chief Justice of the High Court and such other judges \u2026 are only constitutional functionaries having a consultative role and the power of appointment results solely in the Union government\u2019.55 S.P. Gupta also held","that \u2018the opinion of none of the constitutional functionaries is entitled to primacy\u2019.56 It must be remembered that this judgment was delivered in the early 1980s after Prime Minister Gandhi\u2019s triumphant return to power. The political landscape had altered considerably by the time the next major case came up for decision. The position in S.P. Gupta was soundly reversed in the early 1990s, in the Supreme Court\u2019s judgment in Supreme Court Advocates-on-Record v Union of India (1993) (\u2018SCAORA\u2019).57 A seven-judge bench of the Court held by a majority that primacy in the matter of appointments of judges to the Supreme Court vested in the judiciary. The Supreme Court read into the word \u2018consult\u2019 a binding requirement that the view of the Chief Justice of India be accounted for. It further held that the Chief Justice of India would form this view by taking into account the views of the two senior-most judges of the Supreme Court. Thus was constituted, out of whole cloth, the all-important \u2018collegium\u2019 which would become the pivotal body for deciding judicial appointments over the next quarter-century. The majority judgment of Justice Verma further outlined other measures by which the collegium was to represent collectively the views of the relevant courts and judges. Six years later, as a result of several problems emerging in the working of the collegium system, the President referred the matter of judicial appointments to a nine-judge bench which gave its judgment in the case known as Special Reference No. 1 of 1998.58 The Court reiterated the judgment in the SCAORA case but tweaked the collegium system, expanding the number of judges from three to five in the Supreme Court and from one to three at the High Court level. As a result of these two rulings, Indian judges came to enjoy the unique position of being exclusively in charge of appointments to their own institution. The working of this system was seen as problematic for several reasons, not least because it was a closed mechanism and did not allow for any substantial inputs by actors beyond the judiciary, thereby affecting the democratic legitimacy of superior court judges. Even those who had initially complained about the naked political interference in the 1980s began to voice their doubts about a system which had shifted across to the other extreme by being completely without any input from the democratically more legitimate actors. However, given the weak state of the executive and legislature under successive coalition governments from 1999 to 2014, there was little done to change this situation.","E. Phase V: The Court as Counterweight to a Powerful Executive: Back to Basics? (2014\u2013present) As will be examined more closely in the concluding chapter, the elections held to constitute the 16th Lok Sabha in May 2014 represent a landmark in Indian political history. After a quarter-century of relatively weak governments at the centre, these elections resulted in a Central government that had a clear majority in the lower house of Parliament. For the purposes of our focus on the judiciary, this phase has seen the judiciary revert to its more conventional role of being a check on a powerful executive authority. The BJP government has taken an aggressive stance towards dissent and towards those who have opposed its agenda of \u2018development with a Hindu focus\u2019. With a decimated opposition in Parliament and a systematic manpower change in national institutions, the judiciary is one of the few institutions that seems capable of standing up to the authority of the Central government. Not surprisingly, one of the first major policy initiatives of Prime Minister Modi\u2019s government was to push through a constitutional amendment to replace the infamous collegium system with one where the executive would have a definitive say on judicial appointments. With this objective in mind, the Modi Government moved the 99th amendment to the Constitution along with the National Judicial Appointments Commission (NJAC) Act 2014. This framework put in place a system which gives the executive considerable say in the appointments process. Article 124A established a six-member NJAC of which three members were to be sitting judges, and the remaining three were to be the Union Minister for Law and two \u2018eminent persons\u2019. These last two were to be nominated by the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha. The result of this was that judges, while still having a dominant say in the process, would not be in the majority in the appointments commission and their \u2018primacy\u2019 was therefore altered. Both the Amendment and the Act were challenged before the Supreme Court. In its judgment in the Supreme Court Advocates-on-Record Association v Union of India (2015) (\u2018SCAORA II \u2019),59 a five-judge bench, by a majority of 4:1, held that the 99th Amendment and the NJAC Act were in violation of the Constitution for being in breach of the doctrine of basic structure. The effect of the Court\u2019s judgment was that the NJAC became redundant and the collegium system was revived. The Modi Government","expressed its displeasure openly and at the time of writing, matters have come to a near deadlock in terms of appointments as the Court and the government grapple over the contents of a Memorandum of Procedure to smoothen the process of appointing judges to the superior courts. While some judges and courts across the nation have sought to fulfil the traditional role of \u2018check and balance\u2019, somewhat expectedly, the Supreme Court as a whole has been less willing to push back against the government and the legislature on issues where its own interests have not been at stake. This has led one commentator to accuse the Supreme Court of adopting a policy of \u2018judicial evasion\u2019 in significant cases decided from 2015 onwards \u2014challenging the flagship policies of \u2018Demonetisation\u2019 and \u2018Aadhaar\u2019 initiatives of the Modi Government.60 As our survey shows, this trend is consistent with earlier phases where the Supreme Court adopted quiescent positions to avoid ruffling feathers in strong executive governments. Yet that is precisely what the Court was designed to do, should be doing, and will hopefully resume doing in the near future. V. THE CRISIS OF BACKLOG AND DELAY IN THE INDIAN JUDICIARY The gridlock between the Modi Government and the judiciary has drawn attention to a looming crisis in the Indian judicial system which has been simmering for decades and now threatens to spill out of control. The Indian judiciary handles the largest number of cases in the world and also experiences some of the longest delays and backlogs. Some statistics will bear out these claims. The Indian judiciary as a whole consists of about 12,000 courts. Below the Supreme Court are arraigned 24 High Courts, 3,150 District courts, 4,816 munsif\/magistrate courts and 1,964 class II magistrate and equivalent courts. The total number of cases before the judicial system has been growing steadily since the colonial era. To begin at the top, the Supreme Court of India has a superior managerial capacity to handle backlog and delay. In 1950 the number of cases pending before the Supreme Court was only 771. By 1978 that number had grown to 23,092, crossing 100,000 in 1983. Following a series of measures, this number came down to as low as 19,806 in 1998 but has continued to increase thereafter, standing at 60,938 as of September 2016.61 This is an extraordinary increase within a single"]
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